보조생식을 이용할 권리에 대한 유럽인권재판소의 S.H. and Others v. Austria 판결

• 영문명: On the Decision of the European Court of Human Rights: The S.H. and Others against Austria on Human Assisted Reproduction
• 발행기관: 한국가족법학회
• 저자명: 홍윤선(Yun Seon Hong)
• 간행물 정보: 『가족법연구』第39卷 2號, 323~362쪽, 전체 40쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2025.07.31

국문 초록

The judgment of ECHR responds negatively the appeal on the part of four Austrian citizens (two married couples) against the Austrian state. The applicants complained that the prohibition of sperm and ova donation for in vitro fertilisation as established in the Austrian Law of 1992 amounts to discrimination, against article 14 of the European Convention on Human Rights in conjunction with article 8, which establishes that everyone has the right to respect for his private and family life. In addition, the Grand Chamber added that even if it ruled that there was no violation of Article 8, the contracting states should continue to monitor the development of laws in this area, which is particularly rapidly developing in the fields of science and law. In this regard, it is evaluated that this ruling had a significant impact on legislation on assisted reproduction in European countries, and Austria subsequently completed advanced legislation on the right to use assisted reproduction. This includes recognizing the right to use assisted reproduction in female-female same-sex relationships and establishing regulations for establishing the parent-child relationship of children born through this. The implications of this ruling for the direction of assisted reproduction legislation in Korea are summarized as follows. Considering that the development stage of assisted reproductive technology has reached a certain level of uniformity worldwide, it would be sufficient to regulate it in a similar way to the scope of assisted reproductive technology generally accepted in the European countries mentioned above. For some types, it would be necessary to consider allowing it under the premise of excluding commercial transactions under strict requirements (e.g., the surrogate mother must be unmarried, the surrogate mother's husband must consent, the surrogate mother must have childbirth experience, etc.). Regulations on the parent-child relationship of children born through assisted reproductive technology must be established. When establishing criteria for determining parent-child relationship of children born through assisted reproductive technology, the best interests of the child must be given top priority.

목차

Ⅰ. 서 설

Ⅱ. S.H. and Others against Austria 판결

Ⅲ. 현재 오스트리아의 보조생식 관련 법제 현황

Ⅳ. 결 어: 우리나라의 보조생식 법제정비를 위한 시사점

참고문헌

키워드

보조생식 오스트리아 보조생식의료법 유럽인권협약 제8조 생활동반자관계 공동모 친자관계 대리모 대리모출산 Assisted Reproduction Austrian Assisted Reproductive Medicine Act Article 8 of the European Convention on Human Rights Life Partnership Co-Mother Parent-Child Relationship Surrogate Maternity Surrogate Birth

참고문헌

• 국제법학회논총
• 한국형사·법무정책연구원
• 대법원 사법정책연구원
• 가족법연구
• 유럽헌법연구
• 법학논총
• 법과 정책